By Rachel Myers

The American Civil Liberties Union and Human Rights First (HRF) today filed an unusual motion in federal court in an effort to overturn the dismissal of a lawsuit against former Defense Secretary Donald Rumsfeld. The March 2005 lawsuit was filed on behalf of nine Iraqi and Afghan former civilian detainees who were tortured while in U.S. military custody and eventually released without being charged with a crime. The lawsuit charged that then-Secretary Rumsfeld was legally responsible for policies and practices leading to the torture and abuse of detainees.

"It is increasingly obvious that responsibility for widespread and systemic abuse of detainees in Iraq and Afghanistan lies at the top of the chain of command, but no one has been held accountable," said Lucas Guttentag, ACLU lead counsel for the plaintiffs. "The rule of law and the protections of the Constitution cannot stop at the water's edge when United States officials adopt policies that violate fundamental rights and core American values."

Today's motion asks the U.S. Court of Appeals for the District of Columbia Circuit to hear the case in the first instance as an "en banc" matter, meaning the entire court would hear the request rather than the standard procedure of assigning the case to a panel of three judges. The motion asks the court to sit "en banc" in order to reconsider its existing decisions that suggest that foreign nationals outside the United States can never bring a claim against government officials for violations of the Constitution.

In March 2007, Chief Judge Thomas A. Hogan of the U.S. District Court for the District of Columbia dismissed the ACLU's lawsuit even though he described the case as "lamentable" and "appalling" and noted that "the facts alleged in the complaint stand as indictment of the humanity with which the United States treats its detainees." Still, he concluded that under the governing precedent the case must be dismissed.

Today's motion argues that the appellate court decisions on which the district court relied are inconsistent with key U.S. District Court for the District of Columbia decisions and should be reconsidered by the court of appeals.
"We are asking the court to reconsider its decision. We seek accountability for senior American officials who ordered and allowed torture and cruelty overseas," said Deborah Colson of Human Rights First. "Especially in light of recent revelations about the involvement of high-level officials, reliance on the judicial process is a critical safeguard against abuse of power."

The original lawsuit charges that the Constitution and international law clearly prohibit torture and require commanders to prevent such actions when they know or should have known of abuses. In addition to direct orders and authorizations, then-Secretary Rumsfeld and other high ranking officials who were named as defendants in the lawsuit knew of the torture and abuse at detention facilities in Iraq and Afghanistan and failed to act. Recently, President Bush admitted to ABC News that he knew his top national security advisers, including Rumsfeld, had discussed and approved specific details of the CIA's use of torture.

Rear Admiral John Hutson, former Judge Advocate General of the Navy, and Brigadier General James Cullen, former Chief Judge of the U.S. Army Court of Criminal Appeal, are of counsel to HRF. In addition to Guttentag, Colson, Hutson, and Cullen, attorneys on the case are Steven Shapiro, Cecillia Wang, Jennifer Chang, Mónica Ramí­rez, Omar Jadwat, Amrit Singh, Steven Watt, and Hina Shamsi of the ACLU; Arthur Spitzer of the ACLU of the National Capital Area; Michael Posner and Sahr Muhammed Ally of Human Rights First; Bill Lann Lee of Lewis, Feinberg, Lee, Renaker & Jackson P.C.; Paul Hoffman of Schonbrun DeSimone Seplow Harris & Hoffman LLP; David Rudovksy of Kairys, Rudovsky, Epstein & Messing LLP; and Erwin Chemerinsky of Duke University School of Law.

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